Colwell v. Easley

• Decision Date: 02 January 1877
• Parties: Colwell <I>versus</I> Easley.
• Court: Pennsylvania Supreme Court

Page 31

83 Pa. 31

Colwell versus Easley.

Supreme Court of Pennsylvania.

October 24, 1876.

January 2, 1877.

October 24th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1876, No. 140.

W. L. Corbett and J. V. Painter, for the plaintiff in error.

J. Gilpin and E. S. Golden, for the defendant in error.—The sheriff's return to the scire facias is merely that he has made known the writ to certain persons, but does not describe the lands held by them. The short entry of judgment is construed to relate only to the lands in the possession of those served which were bound by the original judgment: Coyle v. Reynolds, 7 S. & R. 329.

In Mitchell v. Hamilton, 8 Barr 486, which expressly overrules Minier v. Saltmarsh, 5 Watts 293, it was held that a tenant in possession cannot, when summoned as a terre-tenant, say that the land was not bound by the judgment. To the same effect is Dengler v. Kiehner, 1 Harris 38, which decides that a terre-tenant can only show a release or a discharge of the land from the lien of the judgment. To the same effect are Haskins v. Low, 5 Harris 66; Drum v. Kelly, 10 Casey 417; Catlin v. Robinson, 2 Watts 373; Cahoon v. Hollenback, 16 S. & R. 432.

In Colborn v. Trimpey, 12 Casey 465, Rhoads was concluded by a judgment against him by default. This case cannot be held to have overruled Mitchell v. Hamilton or Dengler v. Kiehner.

Aside from authority, to allow such a plea would be to make this an action to try the title to land.

Mr. Justice GORDON delivered the opinion of the court, January 2d 1877.

The case for consideration has its origin in this wise: James Easley issued a writ of scire facias on a judgment which he had obtained against Hugh Campbell and R. S. Connor, and caused John A. Colwell to be named as terre-tenant. Colwell caused appearance to be entered in his own behalf, and put in certain pleas, among others, that "The judgment sought to be revived by scire facias is no lien on the lands of J. A. Colwell, and never was." The case came on for trial March 14th 1876, when, before jury called, Hugh Campbell confessed judgment, and the trial proceeded as to the terre-tenant until the 18th, when a motion was made by the plaintiff to strike off the pleas of John A. Colwell, and to enter judgment for the plaintiff for want of a plea. This motion was granted — the plea was stricken off, and the defendant was ordered to plead over instanter, unless he should ask further time; whereupon he made answer that he had no further plea and asked no further time. The court then discharged the jury, and entered "judgment de terris against J. A. Colwell, the defendant, and de propriis as to costs." In the order striking off these pleas and the entry of judgment, the court no doubt intended to follow the case of Haskins v. Low, 5 Harris 64. So far as the disposition of the pleas was concerned, no doubt the learned judge was supported by the ruling in that case; for it is therein said by GIBSON, C. J., that a plea that the judgment was no lien and never had been, was bad, and might have been avoided by a demurrer. As to the judgment, however, we think it is stretching that case a little too much to attempt to make it cover this part of the court's action. The parties in the case referred to had actually proceeded on that plea to trial, and judgment had been rendered against the terre-tenant. He had been permitted to make all the defence in his power, and he had failed to show that the judgment was no lien. The land, thus bound by the judgment, was sold on a vend ex.; the proceeds were sufficient to satisfy the debt, but not all the costs; a fi. fa. was issued, on leave of court, against the terre-tenant for the balance of these costs; and it was upon this execution that the case was brought into this court. The decision was put upon the ground that, in Pennsylvania, we tax cost on every scire facias, as though it were an original suit, such practice having been sanctioned in Wood v. Ludwig, 5 S. & R. 446. In the case in hand there was no trial and verdict, but the defendant was turned out of court because his pleas denied that he was a terre-tenant of the land bound by the judgment. It was held, in the case cited, that no one can be a terre-tenant whose land is not bound, and consequently such an one cannot plead as a terre-tenant. If the land was never bound by the judgment, he has nothing to do with the question of execution between the creditor and his debtor. But we may observe, from this case, that he whose land is not bound by the judgment cannot interpose a defence, though brought into the case by scire facias, because he has no interest in the result. If, however, judgment...